Karnataka High Court
Smt Tarawwa W/O. Deepak Bajantri Alias ... vs Shri. Sunil Subhash Patil on 4 July, 2024
Author: S G Pandit
Bench: S G Pandit
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MFA No.105407 of 2023
C/W MFA No.105015 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 4TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
MISCELLANEOUS FIRST APPEAL NO.105407 OF 2023 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO.105015 OF 2023 (MV-D)
IN MFA NO.105407/2023
BETWEEN:
THE DIVISIONAL MANAGER
CHOLAMANDALAM M.S. GENERAL INSURANCE COM LTD.,
1ST FLOOR, KALBURGI SQUARE, DESAI CROSS,
DESHPANDE NAGAR,
HUBBALLI-580029
R/BY ITS AUTHORIZED SIGNATORY.
...APPELLANT
(BY SRI. NAGARAJ C. KOLLOORI, ADVOCATE)
AND:
KM
SOMASHEKAR 1. SMT. TARAWWA W/O DEEPAK BAJANTRI @ MANE
Digitally signed by K M
SOMASHEKAR
AGE. 51 YEARS, OCC. HOUSEHOLD WORK,
Location: HIGH
COURT OF
KARNATAKA
DHARWAD BENCH
2. SMT. SAVITRI W/O ANAND BAJANTRI @ MANE
AGE. 26 YEARS, OCC. HOUSEHOLD WORK,
3. ANUSHA D/O ANAND BAJANTRI @ MANE
AGE. 5 YEARS, OCC. NIL,
4. KARTIK S/O ANAND BAJANTRI @ MANE
AGE. 3 YEARS, OCC. NIL,
RESPONDENT NOS. 1 TO 4 ARE
R/O KAILAS NAGAR, SULEBHAVI,
TQ. AND DIST. BELAGAVI-591103.
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MFA No.105407 of 2023
C/W MFA No.105015 of 2023
(RESPONDENT NOS. 3 AND 4 ARE MINORS
R/BY. THEIR NATURAL GUARDIAN MOTHER
RESPONDENT NO.2 SMT. SAVITRI BAJANTRI @ MANE)
5. SUNI SUBHASH PATIL
AGE. MAJOR, OCC. BUSINESS,
R/O. NEAR MAGDUM GALLI,
MANGASOOLI VILLAGE,
TQ. ATHANI,
DIST. BELAGAVI-591304.
...RESPONDENTS
(BY SMT. CHETANA S. BIRAJ, ADVOCATE FOR C/R2)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLE ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED
06.06.2023 PASSED IN MVC NO.30/2022 ON THE FILE OF THE IV
ADDITIONAL DISTRICT JUDGE AND MACT-V BELAGAVI, AT
BELAGAVI, AWARDING COMPENSATION OF RS.31,75,900/- WITH
INTEREST AT 6 PERCENT P.A. FROM THE DATE OF PETITION TILL ITS
REALIZATION.
IN MFA NO.105015/2023
BETWEEN:
1. SMT. TARAWWA W/O DEEPAK BAJANTRI @ MANE
AGE. 51 YEARS, OCC. HOUSEHOLD WORK,
2. SMT. SAVITRI W/O ANAND BAJANTRI @ MANE
AGE. 26 YEARS, OCC. HOUSEHOLD WORK,
3. ANUSHA D/O ANAND BAJANTRI @ MANE
AGE. 5 YEARS, OCC. NIL,
4. KARTIK S/O ANAND BAJANTRI @ MANE
AGE. 3 YEARS, OCC. NIL,
RESPONDENT NOS. 1 TO 4 ARE
R/O. KAILAS NAGAR, SULEBHAVI,
TQ. AND DIST. BELAGAVI.
(APPELLANT NOS. 3 AND 4 ARE MINORS
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MFA No.105407 of 2023
C/W MFA No.105015 of 2023
R/BY. THEIR MINOR GUARDIAN MOTHER
I.E., APPELLANT NO.2)
...APPELLANTS
(BY SMT. CHETANA S. BIRAJ, ADVOCATE)
AND:
1. SHRI SUNIL SUBHASH PATIL
AGE. MAJOR, OCC. BUSINESS,
R/O. NEAR MAGDUM GALLI,
MANGASOOLI VILLAGE,
TAL. ATHANI,
DIST. BELAGAVI.
(OWNER OF THE TATA ACE NO.KA-23/B-3286)
2. THE DIVISIONAL MANAGER
THE CHOLA MANDAL
MS GENERAL INSURANCE CO. LTD.,
1ST FLOOR, KALBURGI SQUARE,
DESAI CROSS,
DESHPANDE NAGAR,
HUBBALLI-580029.
(OWNER OF THE TATA ACE NO.KA-23/B-3286)
...RESPONDENTS
(BY SRI. NAGARAJ C. KOLLOORI, ADVOCATE FOR R2,
NOTICE TO R1-DISPENSED WITH)
THIS MFA IS FILED U/S.173(1) OF MV ACT, 1988, AGAINST
THE JUDGMENT AND AWARD DATED 06.06.2023 PASSED IN MVC
NO. 30/2022 ON THE FILE OF THE IV ADDITIONAL DISTRICT JUDGE
AND MOTOR ACCIDENT CLAIMS TRIBUNAL-V, BELAGAVI, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR ORDERS, THIS DAY,
S G PANDIT J., DELIVERED THE FOLLOWING:
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MFA No.105407 of 2023
C/W MFA No.105015 of 2023
JUDGMENT
Though these appeals are listed for orders, they are taken
up for final disposal with the consent of learned counsel for
both the parties.
2. The claimants as well as insurance company are in
appeals against judgment and award dated 06.06.2023 passed
in MVC No.30/2022 on the file of learned IV Addl. District Judge
& MACT-V, Belagavi (for short, 'Tribunal').
3. MFA No.105407/2023 is filed by the insurance
company challenging the liability saddled on it as well as on
quantum of compensation, whereas the claimants are also in
appeal in MFA No.105015/2023 praying for enhancement of
compensation, being dissatisfied with the quantum of
compensation awarded by the Tribunal.
4. Brief facts of the case are that, the claimants, who
are mother, wife and children of the deceased Anand, filed a
claim petition before the Tribunal under Section 166 of the
Motor Vehicles Act, 1988 seeking compensation for the
accidental death of Anand that took place on 20.09.2021
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involving Goods Vehicle TATA Ace bearing registration No.KA-
23/B-3286. It is further stated that as on the date of accident,
deceased was aged 29 years, earning Rs.50,000/- per month,
as he was owner of music band company and also doing
vegetable vending business.
5. On appearance, respondent No.2-Insruance
Company appeared through its counsel and filed statement of
objections denying the entire claim petition averments. It
contended that death of the deceased is due to 'hit and run'
case by an unknown vehicle or due to some other accident.
Further it contended that there is no nexus between the death
of deceased and goods vehicle Tata Ace bearing registration
No.KA-23/B-3286. It is further contended that the driver of the
offending vehicle was not holding valid and effective driving
license as on the date of accident. Thus, sought for dismissal
of claim petition.
6. Before the Tribunal, claimant No.2-wife of the
deceased examined herself as PW1 and one eye-witness was
examined as PW2 apart from marking the documents as Exs.P1
to P13. Respondent No.2 examined its official as RW1 and
marked documents as Ex.R1 to R9. The Tribunal on scrutiny of
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the material on record awarded a total compensation of
Rs.31,75,900/- with interest at 6% per annum from the date of
petition till realization on the following heads:
Loss of dependency Rs.31,05,900/-
Loss of estate Rs. 15,000/-
Loss of consortium Rs. 40,000/-
Funeral expenses Rs. 15,000/-
-------------------
Total Rs.31,75,900/-
------------------
While awarding the above compensation, the Tribunal
assessed monthly income of the deceased at Rs.14,500/-,
added 40% of the assessed income towards future prospects of
the deceased, deducted 1/4th towards personal expenses,
adopted multiplier of 17 taking the age of the deceased as 29
years.
7. Heard the learned counsel Sri. Nagaraj C Kolloori
for the insurance company as well as learned counsel
Smt.Chetana S. Biraj for the claimants and perused the appeal
papers.
8. Sri.Nagaraj C Kolloori, learned counsel for the
Insurance Company in support of his appeal would submit that
the Tribunal committed an error in saddling the liability on the
appellant/insurance company. Learned counsel further submits
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that the driver of the offending Tata Ace vehicle was not having
valid and effective driving license as on the date of accident. He
further submits that when the insurance company has
succeeded in proving its defence that the driver was not having
valid and effective driving license, the Tribunal Could not have
saddled liability on the insurance company. In support of his
contention, learned counsel places reliance on a decision of the
Hon'ble Apex Court in the case of Balu Krishna Chavan Vs.
Reliance General Insurance Company Limited & Others1
Further, learned counsel would submit that in the above
referred case, the Hon'ble Apex Court has observed that when
the Tribunal comes to a conclusion that the insurance company
is not liable to pay compensation, there shall be no direction to
'pay and recover'. Thus, learned counsel submits that it is not
a case of pay and recover.
9. With regard to quantum of compensation, learned
counsel Sri. Nagaraj C Kolloori submits that though the
claimants have not placed on record any material to establish
the income of the deceased, the Tribunal assessed notional
income of the deceased at Rs.14,500/- per month, which is on
SLP (C) No.33638/2017, dated 3.11.2022
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the higher side. It is submitted that notional income in terms
of chart prepared by the KSLSA for the accident of the year
2021 is Rs.14,250/- per month. Thus, he prays that notional
income of the deceased be assessed at Rs.14,250/- per month.
Further, learned counsel would submit that the compensation
awarded by the Tribunal on the other heads is just and
reasonable, which needs no interference. Thus, he prays for
allowing the appeal filed by the insurance company.
10. Per contra, Smt.Chetana S Biraj, learned counsel
for the appellants/claimants would submit that the income of
the deceased assessed by the Tribunal at Rs.14,500/- per
month is on the lower side. Learned counsel would submit that
the deceased was earning a sum of Rs.50,000/- per month, as
he was owner of music band company and he was also doing
vegetable business. Learned counsel invites attention of this
Court to Ex.P13-Certificate of appreciation issued to the
deceased for occupation of drum beating. Learned counsel
would submit that from music band company as well as
vegetable vending business, the deceased was earning
Rs.50,000/- per month, which PW1 has deposed before the
Tribunal. She further submits that without taking note of
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evidence of PW1, the Tribunal committed grave error in
assessing the income of the deceased at Rs.14,500/- per
month, which is on the lower side. Thus, she prays for re-
assessing the income of the deceased on the higher side.
Learned counsel further submits that the claimants are mother,
wife and children of the deceased, who are entitled to
Rs.40,000/- each towards loss of consortium as held by the
Hon'ble Apex Court in the case of Magma General Insurance
Company Limited Vs. Nanu Ram & Others2. Thus, she
prays for allowing the appeal filed by the claimants and to
dismiss the appeal of the insurance company.
11. Having heard the learned counsel for the parties
and on perusal of the appeal papers, the following points would
arise for consideration:
a) Whether the Tribunal is justified in directing
the insurance company to pay compensation
at the first instance with liberty to recover the
same from the owner of the offending Tata
Ace vehicle by applying the principle of 'Pay
and Recover'?
2018 ACJ 2782
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b) Whether the claimants would be entitled for
enhanced compensation?
Answer to the above points would be in the "affirmative"
for the following reasons:
12. The accident that took place on 20.9.2021 involving
Goods Vehicle Tata Ace bearing registration No.KA-23/B-3286,
resultant death of the deceased Anand is not in dispute in these
appeals. The insurance company is in appeal challenging the
liability as well as quantum of compensation, whereas the
claimants are in appeal seeking enhancement of compensation.
13. It is the contention of the appellant/insurer that
the Tribunal committed an error in directing 'Pay and recover'.
It is submitted that when the insurance company has proved
that the driver of the offending vehicle was not having valid
and effective driving license as on the date of accident, which
would be breach of policy conditions, the Tribunal could not
have saddled liability on the insurance company holding that
the insurance company shall pay compensation at the first
instance with liberty to recover the same from the owner of the
offending vehicle. Learned counsel placing reliance on decision
of the Hon'ble Apex Court in Balu Krishna's case supra
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submitted that when the Tribunal comes to a conclusion that
the insurance company is not liable to pay compensation, there
shall be no direction of 'pay and recover'. Law in that regard is
settled. The Hon'ble Apex Court in the case of National
Insurance Company Ltd. Vs. Swaran Singh & Others3 has
made it clear, as to how and in what circumstances, the
Tribunal could order "pay and recover".
14. In a similar circumstance, where the driver of the
vehicle was not holding driving license as on the date of
accident, the Hon'ble Apex Court in the case of Shamanna &
Another Vs. The Divisional Manager, the Oriental
Insurance Company Limited & Others4, has directed the
insurance company to pay the compensation at the first
instance and then recover the same from owner of the
offending vehicle, by following the decision in Swaran Singh's
case supra.
15. In Balu Krishna's case supra, the appellant was a
gratuitous passenger and in that circumstance, when liability is
not on the insurance company, the Hon'ble Apex Court has held
(2004) 3 SCC 297
2018 (9) SCC 650
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that it is not a case of Pay and recover. The said judgment
would have no application to the facts and circumstances of the
present case. Therefore, the finding recorded by the Tribunal
holding that the insurance company is liable to pay
compensation at the first instance with liberty to recover the
same from the owner of the offending vehicle by applying the
principles laid down in the case of Shamanna supra, is just
and proper, which does not warrant interference at the hands
of this Court. Thus, we are of the considered view that the
contention of the insurance company insofar as 'Pay and
recover' is concerned is liable to be rejected and it is rejected.
16. With regard to quantum of compensation, it is the
contention of the appellants/claimants that the deceased was
earning Rs.50,000/- per month as he was owner of music band
and also doing vegetable vending business. The claimants
produced Ex.P13-Certificate of appreciation issued in favour of
the deceased in 2013 for occupation of drum beating.
However, except Ex.P13, no other corroborative document is
placed on record to prove that the deceased was earning
Rs.50,000/- per month. In the absence of documentary
evidence to show the exact income of the deceased, the
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Tribunal assessed notional income of the deceased at
Rs.14,500/- per month, which in our view is just and proper,
does not call for interference. There is no dispute with regard
to age of the deceased at 29 years, addition of 40% of the
assessed income towards future prospects, adoption of
multiplier of 17 and deduction of 1/4th towards personal and
living expenses of the deceased, since there are four
dependents. By applying the same, the Tribunal awarded a
sum of Rs.31,05,900/- under the head of loss of dependency,
which is just and proper, requires no interference.
17. Further, the award of compensation by the Tribunal
under the head of loss of estate at Rs.15,000/- and
Rs.15,000/- towards funeral expenses, is just and proper and
same is undisturbed. The Tribunal awarded a sum of
Rs.40,000/- towards loss of consortium, which is on the lower
side. In terms of decision of the Hon'ble Apex Court in Magma
General Insurance Company Limited supra, the claimants
would be entitled to Rs.40,000/- each towards loss of
consortium i.e., Rs.1,60,000/-. Accordingly, the claimants
are entitled to enhanced compensation of Rs.1,20,000/-,
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which shall carry interest at the rate of 6% per annum from the
date of petition till its realization.
18. In the result, we pass the following:
ORDER
a) MFA No.105407/2023 filed by the
insurance company is dismissed as
devoid of merits.
b) MFA No.105015/2023 filed by the
claimants is partly allowed.
c) The impugned judgment & award of
Tribunal is modified holding that the
claimants are entitled to enhanced
compensation of Rs.1,20,000/-, which
shall carry interest at the rate of 6% p.a.
from the date of claim petition till
realization.
d) The appellant-Insurer shall deposit the
enhanced compensation amount with
accrued interest before the Tribunal within
a period of six weeks from the date of
receipt of certified copy of this judgment.
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e) On such deposit, the same shall be
released in favour of claimant No.2/wife of
the deceased.
f) It is made clear that the finding of the
Tribunal with regard to 'pay and recover' is
undisturbed.
g) The amount in deposit, if any, be
transmitted to the concerned Tribunal
forthwith.
h) Draw modified award accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
JTR
